A federal judge in Florida has reportedly granted a motion for permanent injunction in a trademark infringement case involving two “never-ending” restaurant promotions. According to media sources, Darden Concepts Inc., which owns Olive Garden and Red Lobster, filed an October 2010 complaint alleging that a TGI Friday Inc. franchisee with outlets in seven states had infringed on its “never-ending pasta” and “all you can eat” shrimp slogans by advertising a “never-ending shrimp” deal. Under terms of the settlement, TGI Friday’s must halt its “never-ending” promotion, which evidently ran as 630 TV spots in anticipation of a national campaign. See Law360, June 6, 2011.
Category Archives Litigation
More than 200 farm workers from Ecuador, Panama and Costa Rica have reportedly filed seven lawsuits against commercial banana growers and pesticide manufacturers, seeking to recover damages and medical monitoring costs for health conditions allegedly related to dibromochloropropane (DBCP) exposure. Aguilar v. Dole Food Co., Inc., No. __ (E.D. La., filed June 1, 2011). The complaints argue that defendants used DBCP from approximately 1960 to 1985—“and possibly into the 1990s”—in banana growing regions outside the United States, which banned the nematocide in 1979 after the Environmental Protection Agency (EPA) listed it as a suspected carcinogen. Plaintiffs claim that because they were not informed of the danger or provided with protective clothing, they injected DBCP into soil without the use of gloves, protective covering or respiratory equipment to prevent skin absorption or inhalation. “Many workers absorbed so much DBCP each day that their urine would give off the smell of the chemical…
A federal judge in California has granted class certification in a suit alleging that Diamond Foods, Inc. misbranded its shelled walnut products and misled consumers by using “express and implied statements about the positive effects of omega-3 fatty acid consumption on health.” Zeisel v. Diamond Foods, Inc., N0. 10-01192 (N.D. Cal., decided June 7, 2011). The labels at issue apparently featured a heart symbol banner with the phrase “Omega 3 2.5 g per serving” and a structural claim about the omega-3 in walnuts, as well as a qualified health claim approved by the Food and Drug Administration (FDA). After FDA issued a February 2010 warning letter about these so-called combination claims, a consumer filed a complaint alleging that Diamond used language not authorized by FDA and that its products “did not provide the health benefits that were claimed on the package labels.” Plaintiff then moved to certify a class of all…
A man who claims that his consumption of Ocean Spray’s 100% Cranberry Pomegranate Juice® caused his food poisoning and other related injuries, has filed an individual action against the company, retailers and a testing laboratory in an Illinois state court. Mihalopoulos v. Ocean Spray Cranberries, Inc., No. 2011L005420 (Ill. Cir. Ct., Cook Cty., filed May 25, 2011). The plaintiff alleges that the product was contaminated with a “fungus known as Penicillium Glabrum.” Part of the complaint alleges that a testing laboratory confirmed the presence of the fungus in the product, but failed to preserve the juice sample, which the plaintiff contends will prejudice his ability to prosecute the remainder of his claims. Alleging strict products liability, negligence and spoliation of evidence, the plaintiff seeks damages in excess of $50,000 for his “severe and permanent injury,” medical costs and future economic losses.
According to a news source, a Florida resident has filed a putative class action against Kraft Foods Global, Inc., alleging that the packaging for its Oscar Mayer® deli meat products misleads consumers by declaring the meat to be 98 percent fat free, with 50 calories per serving. McDougal v. Kraft Foods, Inc., No. 11-61202 (S.D. Fla., filed May 23, 2011). The plaintiff contends that consumers are misled to believe that just 2 percent of the 50 calories come from fat, when 20 percent of the calories per serving actually come from fat. Seeking to certify statewide and nationwide classes, the plaintiff alleges violation of consumer protection laws, breach of express warranty and unjust enrichment. The complaint is similar to one filed in a different federal district in Florida in April. Additional details about that lawsuit appear in Issue 391 of this Update. See Law360, May 24, 2011.
Celestial Seasonings has filed a complaint against Mexican and Texas companies that are allegedly infringing its Sleepytime trademark with a tea product sold under a “Sleeping Time” mark. The Hain Celestial Group, Inc. v. Royal Tea S.A. de C.V., No. 11-2504 (E.D.N.Y., filed May 24, 2011). According to the complaint, Celestial began registering its marks for tea and dietary supplements in 1975. Contending that the defendants’ Sleeping Time mark is “confusingly similar,” Celestial alleges that the defendants were fully aware of Celestial’s rights to the Sleepytime mark because they tried to cancel Celestial’s Mexican trademark registration. The complaint alleges trademark infringement, trademark dilution and unfair competition under federal law, and related counts under state law. The plaintiff seeks a permanent injunction, destruction of infringing inventory and advertising, treble damages, costs, and attorney’s fees.
Selective Insurance Co. of South Carolina has filed a declaratory judgment action against Phusion Projects, Inc., which makes and sells the caffeinated alcohol beverage Four Loko®, claiming that it owes no duty to defend or indemnify Phusion in a number of pending lawsuits. Selective Ins. Co. of S. Car. v. Phusion Projects Inc., No. 11-03378 (N.D. Ill., filed May 19, 2011). The lawsuits involve claims that the product was responsible for teenagers’ deaths or injury, its promotions violated consumer protection laws, and the product’s packaging infringed trade dress. According to the insurer, (i) its policy was not in effect as to some of the plaintiffs, whose alleged injuries occurred either before the policy took effect or after the insurer cancelled the policy; and (ii) the policy’s terms expressly or unambiguously preclude coverage for certain claims, including those involving intoxication. The insurer seeks a declaration that the policy does not provide coverage for…
A coalition of non-profit advocacy organizations has filed a complaint for declaratory and injunctive relief against the Food and Drug Administration (FDA), alleging that the agency has unreasonably delayed action on several of its petitions relating to the use of antibiotics in animal feed. Natural Res. Def. Council v. FDA, No. 11-3562 (S.D.N.Y., filed May 25, 2011). The plaintiffs seek orders compelling the agency to “withdraw approval for subtherapeutic uses of penicillin and tetracyclines, unless FDA’s findings are reversed in new administrative proceedings.” According to the complaint, while FDA determined in 1977 that these drugs” have not been shown to be safe,” it never withdrew its approvals for the drugs’ subtherapeutic uses. Contending that “misuse and overuse of antibiotics has given rise to a growing and dangerous trend of antibiotic resistance,” the coalition alleges that some of its organizations filed citizen petitions in 1999 and 2005 requesting that FDA “withdraw approvals…
An administrative law judge has apparently begun hearing a Federal Trade Commission (FTC) complaint alleging that POM Wonderful LLC makes false and unsubstantiated claims that its pomegranate juice products will prevent or treat “heart disease, prostate cancer, and erectile dysfunction.” According to a news source, the government opened its case by asserting that the studies on which the company relied do not support the marketing claims and that its executives “repeatedly ignored warning signs that the marketing didn’t match the science.” Food and beverage companies and advertisers are reportedly watching the dispute closely; if the agency prevails, the companies will have to support their advertising with more scientific evidence. POM contends that its product claims are supported by $35 million in research and that the company has “sponsored or participated in more than 90 scientific investigations with over 65 studies on POM products, including 17 clinical trials.” POM will also…
According to a news source, the family of a teenager has sued Phusion Projects, which makes the alcohol energy drink Four Loko®, alleging that their son’s disorientation after drinking two of the beverages led to his fatal accident. Rupp v. Phusion Projects, No. __ (Ill. Cir. Ct., Cook Cty., filed May 19, 2011). He allegedly consumed the beverage during a concert in 2010, and his parents picked him up after concert staff contacted them claiming the boy “appeared extremely intoxicated.” The family alleges that their son acted “paranoid and disoriented” on the ride home and took off running when they arrived home. He apparently died when he was struck by a car after running onto a busy highway. The family reportedly alleges in the wrongful death lawsuit that the company “was careless and negligent in formulating a caffeinated, alcoholic beverage that desensitizes users to the symptoms of intoxication, and increases…
